The censure is a disciplinary measure utilized by boards and legislative bodies alike in order to publicly reprimand a member while not taking away any of her or his granted legislative authority.  It has been utilized by different forms of government within the U.S. dating back to colonial times.  But what impact does a censure have on an individual’s right to free speech, and can it be used Constitutionally by a legislative body to punish a member for his or her speech?  These questions were answered recently by the U.S. Supreme Court in Houston Community College System v. David Buren Wilson.

In the case, the defendant was elected, and almost immediately began publicly disagreeing with his colleagues, bringing lawsuits against the Board for his disagreements with its decisions.  After being reprimanded for his actions, he escalated his behavior, publicizing his views via robocalls to the constituents of trustees, hiring a private investigator to surveil another trustee, and filing additional lawsuits against the Board.

At a meeting in 2018, the Board adopted a public resolution censuring Mr. Wilson, and implementing penalties against Wilson, such as making him ineligible for election to Board officer positions and making him ineligible for reimbursement for college related travel.  Wilson then amended one of his pending lawsuits against the Trustees to include violations of his Constitutional rights to free speech.  While his complaint was originally dismissed by the district court for lack of standing, the Fifth Circuit Court of Appeals reversed, stating that Wilson had a viable First Amendment claim.  The Supreme Court granted certiorari to determine whether Wilson could pursue a First Amendment claim “based on a purely verbal censure.”

The First Amendment prohibits laws abridging the freedom of speech; governments usually can’t impose “prior restraints” on speech, and governments may not retaliate against individuals after the fact for protected speech.

In analyzing the claims brought by Wilson, the Court stated that First Amendment retaliation claims must show that the government “took an ‘adverse action’ in response to [a person’s] speech that ‘would not have been taken absent the retaliatory motive.’”  It then equated a censure to “a mere frown from a supervisor.”  In addition, it found that the censure itself was a form of free speech, based on Wilson’s own conduct, that could not be stifled by a lawsuit.  The censure “did not prevent Mr. Wilson from doing his job, it did not deny him any privilege of office,” and there were no allegations that the censure “was defamatory.”

The Court did not go so far as to say that all censures were legal under the First Amendment, such as cases involving students, employees, or non-members of government boards.  However, in those cases where censure of governmental board members is nothing more than a statement denouncing the activities of a fellow board member, the Court found the body censuring that individual did not run afoul of the member’s First Amendment rights.

For the most part, elected officials are protected from punishment by their fellow members.  While this case only covers a narrow portion of First Amendment issues, it is an important one for those working for and with legislative bodies.  If you, or your organization needs assistance in working with an elected boards or commissions, contact Wiley Reber Law, for experience that works.